Five Ways Doctors Can Better Prepare for, Survive Malpractice Lawsuits

May 25, 2014

Malpractice lawsuits are never pleasant, but physicians that are proactive before, during, and even after a lawsuit will have a better outcome.

There is good and bad news.  The bad news is that if you are a physician, chances are you’ll be sued at least once by the time you reach 55.  The good news is that about 93 percent of lawsuits never go to trial.

However, even that is little solace to a physician who has dedicated his life to caring for patients, only to face the embarrassment, anger, fear, and frustration of a lawsuit.

From start to resolution, the average malpractice settlement process takes almost three years.  So the real question isn’t the lawsuit itself, it’s more about how you, your family, and your practice will manage the situation.   And make no mistake, it is difficult and it is time-consuming. There are depositions, meetings with your defense team, time- and energy-consuming requests for information and files.  Plus, the lawsuit itself is always hanging over your head; a worry that just won’t go away. 

During my career, I’ve worked closely with many physicians facing lawsuits. I’ve seen firsthand what happens, what is helpful, and what isn’t. Malpractice lawsuits can be especially devastating to families and relationships. Here’s what you can expect and what you can do to better prepare for and survive a lawsuit.

1. You’ll need an ally. One of the most important allies you can have during a lawsuit is a strong and experienced malpractice insurer.  With them, you’ll want a single point of contact, your personal “coach” who will answer your questions and help you understand the process.  This person will be a very important resource for you.  Yes, you want vigorous and experienced defense, but you also want clear communication and reassurance throughout the process.   

2. It will be stressful to you and your family. Physicians sued note that it’s like no other professional experience.  It’s hard on the physician, but also devastating for the spouse and family.  Some carriers offer counseling and support for you and your family.  If they do, use it. You need to be your best to juggle the legal “stuff,” your practice, and your personal life.

3. You’ll need experienced advice and counsel.  This is not the time to insist on being defended by the friendly attorney that helped with a colleague’s divorce. You need expert malpractice counsel. Most major carriers today will have access to good local legal expertise.  Rely on their expertise to pick the best law firm.  Your insurer shares your interest in a successful defense.  One thing you’ll want to watch, however, is who the law firm assigns to your case.  Insurers often negotiate aggressive fee discounts based on volume.  To manage this, a law firm may choose to assign the less experienced (lower cost) member of their firm to represent you.  If you have concerns, share them with your “coach.” Before you “sign on the line that is dotted” when selecting an insurer, know which law firms are on the insurer's “defense panel.”  You’ll want to see your community’s experienced and reputable malpractice defense law firms on that list. 

4. Avoid denial.  When something bad happens, the first inclination is to keep it quiet.  In a medical setting, it’s very important to promptly notify your insurer of any bad outcome. Even if a lawsuit hasn’t been filed, if someone has mentioned a potential filing, or you know of a potential incident, inform the carrier. They will plan for, prepare for, and possibly prevent a lawsuit. Your front-office staff can often be your best early warning system.  Have them report any potential problems (e.g., unhappy patients) to you. 

5. Get over it.   Learn from a lawsuit experience and get on with your life and practice.    You will likely emerge from this with a new appreciation for risk management.  Perhaps you will have newly honed interpersonal skills.  You may even ask your insurer to recommend specific risk-management tools to help avoid future similar incidents.  Whatever it is, be positive and don’t kick yourself. 

Lawsuits are never pleasant.  But don’t ignore the possibility.  Be proactive before, during and even after, and you will have a better outcome. Take time now, even before a lawsuit is filed, to  understand your insurer’s claims process and to make sure you’re comfortable with the attorneys that may ultimately represent you.  And always remember to take care of yourself and your family if the “storm” does hit.